Prohibition Against Certain Flights in the Kabul Flight Information Region (FIR) (OAKX), 55500-55507 [2024-14708]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 89, Number 129 (Friday, July 5, 2024)]
[Rules and Regulations]
[Pages 55500-55507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14708]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2023-1415; Amdt. No. 91-369A]
RIN 2120-AL99


Prohibition Against Certain Flights in the Kabul Flight 
Information Region (FIR) (OAKX)

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The Federal Aviation Administration (FAA) is issuing this 
final rule to permit all: U.S. air carriers; U.S. commercial operators; 
persons exercising the privileges of an airman certificate issued by 
the FAA, except when such persons are operating U.S.-registered 
aircraft for a foreign air carrier; and operators of U.S.-registered 
civil aircraft, except when the operator of such aircraft is a foreign 
air carrier, to operate transiting overflights of the Kabul Flight 
Information Region (FIR) (OAKX) on jet routes P500-G500 at altitudes at 
and above Flight Level (FL) 300, subject to the approval of, and in 
accordance with the conditions established by, the appropriate 
authorities of Afghanistan. The FAA became aware that certain U.S. 
operators were having difficulty using jet routes P500-G500 in the 
Kabul FIR (OAKX) at altitudes at and above FL320 due to aircraft 
performance issues under certain meteorological conditions. After 
consideration of Afghanistan's practice of publishing Notices to Air 
Missions (NOTAMs) regarding overflights on these jet routes, the lack 
of any reported security incidents posing safety-of-flight risks to 
civil aircraft overflights on these jet routes since the FAA issued 
this Special Federal Aviation Regulation (SFAR) in July 2023 or while 
the FAA flight prohibition NOTAM that preceded it was in effect, and 
the very brief period of time U.S. civil aviation overflights on these 
jet routes would be in the Kabul FIR (OAKX), the FAA has determined 
transiting U.S. civil aviation overflights operating on jet routes 
P500-G500 in the Kabul FIR (OAKX) at altitudes at and above FL300 
present a low risk. The FAA continues to prohibit U.S. civil aviation 
operations in the remainder of the Kabul FIR (OAKX) at altitudes below 
FL320 due to hazards to persons and aircraft engaged in operations at 
those altitudes due to the risk posed by violent extremist and militant 
activity and the lack of adequate risk mitigation capabilities to 
counter such activity.

DATES: This final rule is effective on July 5, 2024.

FOR FURTHER INFORMATION CONTACT: Bill Petrak, Flight Standards Service, 
through the Washington Operations Center, Federal Aviation 
Administration, 800 Independence Avenue SW, Washington, DC 20591; 
telephone (202) 267-3203; email [email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    This action amends Special Federal Aviation Regulation (SFAR) No. 
119, 14 CFR 91.1619, to permit U.S. civil aviation airmen and operators 
to conduct transiting overflights of the Kabul FIR (OAKX) on jet routes 
P500-G500 at altitudes at and above FL300, subject to the approval of, 
and in accordance with the conditions established by, the appropriate 
authorities of Afghanistan.
    On July 25, 2023, the Federal Aviation Administration (FAA) 
published a final rule in the Federal Register to prohibit certain 
flight operations in the Kabul FIR (OAKX) at altitudes below FL320 by 
all: U.S. air carriers; U.S. commercial operators; persons exercising 
the privileges of an airman certificate issued by the FAA, except when 
such persons are operating U.S.-registered aircraft for a foreign air 
carrier; and operators of U.S.-registered civil aircraft, except when 
the operator of such aircraft is a foreign air carrier. In that final 
rule, the FAA determined that U.S. civil aviation overflights of the 
Kabul FIR (OAKX) at altitudes at and above FL320 could resume due to 
diminished risks to U.S. civil aviation operations at those altitudes.
    Subsequently, the FAA became aware that certain U.S. operators were 
having difficulty using jet routes P500-G500 in the Kabul FIR (OAKX) at 
altitudes at and above FL320 due to aircraft performance issues under 
certain meteorological conditions. After consideration of Afghanistan's 
practice of publishing NOTAMs regarding overflights on these jet 
routes, the lack of any reported security incidents posing safety-of-
flight risks to civil aircraft overflights on these jet routes since 
the FAA issued SFAR No. 119, 14 CFR 91.1619, in July 2023 or while the 
FAA flight prohibition NOTAM that preceded it was in effect, and the 
very brief period of time U.S. civil aviation overflights on these jet 
routes, on which the minimum en route altitude is FL300, would be in 
the Kabul FIR (OAKX), the FAA assesses the risk to the safety of 
transiting U.S. civil aviation overflights operating on jet routes 
P500-G500 in the Kabul FIR (OAKX) at altitudes at and above FL300 is 
low. Under the FAA flight prohibition NOTAM preceding the July 2023 
final rule, the FAA had previously permitted U.S. civil aviation to 
conduct transiting overflight operations in the Kabul FIR (OAKX) on jet 
routes P500-G500. The FAA

[[Page 55501]]

continues to prohibit U.S. civil aviation operations in the remainder 
of the Kabul FIR (OAKX) at altitudes below FL320 due to hazards to 
persons and aircraft engaged in operations at those altitudes due to 
the risk posed by violent extremist and militant activity and the lack 
of adequate risk mitigation capabilities to counter such activity.
    Therefore, the FAA is issuing this final rule to permit U.S. civil 
aviation to operate transiting overflights of the Kabul FIR (OAKX) on 
jet routes P500-G500 at altitudes at and above FL300, subject to the 
approval of, and in accordance with the conditions established by, the 
appropriate authorities of Afghanistan.

II. Authority and Good Cause

A. Authority

    The FAA is responsible for the safety of flight in the U.S. and for 
the safety of U.S. civil operators, U.S.-registered civil aircraft, and 
U.S.-certificated airmen throughout the world. Sections 106(f) and (g) 
of title 49, U.S. Code (U.S.C.), subtitle I, establish the FAA 
Administrator's authority to issue rules on aviation safety. Subtitle 
VII of title 49, Aviation Programs, describes in more detail the scope 
of the agency's authority. Section 40101(d)(1) provides that the 
Administrator shall consider in the public interest, among other 
matters, assigning, maintaining, and enhancing safety and security as 
the highest priorities in air commerce. Section 40105(b)(1)(A) requires 
the Administrator to exercise this authority consistently with the 
obligations of the U.S. Government under international agreements.
    The FAA is promulgating this rule under the authority described in 
49 U.S.C. 44701, General requirements. Under that section, the FAA is 
charged broadly with promoting safe flight of civil aircraft in air 
commerce by prescribing, among other things, regulations and minimum 
standards for practices, methods, and procedures that the Administrator 
finds necessary for safety in air commerce and national security. This 
regulation is within the scope of the FAA's authority because it 
provides relief to U.S. civil aviation operators and airmen conducting 
transiting overflights of the Kabul FIR (OAKX) on jet routes P500-G500, 
permitting those persons to operate at altitudes at and above FL300, 
instead of at altitudes at and above FL320, as is required for 
operations conducted in the rest of the Kabul FIR (OAKX).

B. Good Cause for Immediate Adoption

    Section 553(b)(B) of title 5, U.S. Code, authorizes agencies to 
dispense with notice and comment procedures for rules when the agency 
for ``good cause'' finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' Also, section 553(d) 
permits agencies, upon a finding of good cause, to issue rules with an 
effective date less than 30 days from the date of publication. In this 
instance, the FAA finds good cause to forgo notice and comment and the 
delayed effective date because they would be impracticable and contrary 
to the public interest.
    Providing notice and the opportunity for the public to comment here 
would be impracticable. The FAA's flight prohibitions, and any 
amendments thereto, need to include appropriate boundaries that reflect 
the agency's current understanding of the risk environment for U.S. 
civil aviation. This allows the FAA to protect the safety of U.S. 
operators' aircraft and the lives of their passengers and crews without 
over-restricting or under-restricting U.S. operators' routing options. 
However, the risk environment for U.S. civil aviation in airspace 
managed by other countries with respect to safety of flight is fluid in 
circumstances involving fighting, violent extremist and militant 
activity, or periods of heightened tensions, particularly where weapons 
capable of targeting or otherwise negatively affecting U.S. civil 
aviation are or may be present. This fluidity, and the potential for 
rapid changes in the risks to U.S. civil aviation, significantly limits 
how far in advance of a new or amended flight prohibition the FAA can 
usefully assess the risk environment. The delay that would be 
occasioned by providing an opportunity to comment on this action would 
significantly increase the risk that the resulting final action would 
not accurately reflect the current risks to U.S. civil aviation 
associated with the situation and thus would not establish boundaries 
for the flight prohibition commensurate with those risks.
    While the FAA sought and responded to public comments, the 
boundaries of the area in which unacceptable risks to the safety of 
U.S. civil aviation existed might change due to: evolving military or 
political circumstances; violent extremist and militant group activity; 
the introduction, removal, or repositioning of more advanced anti-
aircraft weapon systems; or other factors. As a result, if the 
situation improved while the FAA sought and responded to public 
comments, the rule the FAA finalized might be over-restrictive, 
unnecessarily limiting U.S. operators' routing options and potentially 
causing them to incur unnecessary additional fuel and operations-
related costs, as well as potentially causing passengers to incur 
unnecessarily some costs attributed to their time. Conversely, if the 
situation deteriorated while the FAA sought and responded to public 
comments, the rule the FAA finalized might be under-restrictive, 
allowing U.S. civil aviation to continue operating in areas where 
unacceptable risks to their safety had developed. Such an outcome would 
endanger the safety of these aircraft, as well as their passengers and 
crews, exposing them to unacceptable risks of death, injury, and 
property damage that could occur if a U.S. operator's aircraft were 
shot down (or otherwise damaged) while operating in the Kabul FIR 
(OAKX).
    Alternatively, if the FAA made changes to the area in which U.S. 
civil aviation operations would be prohibited between a notice of 
proposed rulemaking and a final rule due to changed conditions, the 
version of the rule the public commented on would no longer reflect the 
FAA's current assessment of the risk environment for U.S. civil 
aviation.
    In addition, seeking comment would be contrary to the public 
interest because some of the rational basis for the rulemaking is based 
upon classified information and controlled unclassified information not 
authorized for public release. In order to meaningfully provide comment 
on a proposal, the public would need access to the basis for the 
agency's decision-making, which the FAA cannot provide. Disclosing 
classified or controlled unclassified information in order to seek 
meaningful comment on the proposal would harm the public interest. 
Accordingly, the FAA meaningfully seeking comment on the proposal is 
contrary to the public interest.
    Therefore, providing notice and the opportunity for comment would 
be impracticable as it would hinder the FAA's ability to maintain 
appropriate flight prohibitions based on up-to-date assessments of the 
risks to the safety of U.S. civil aviation operations in airspace 
managed by other countries and contrary to the public interest as the 
FAA cannot protect classified and controlled unclassified information 
and meaningfully seek public comment.
    For the same reasons discussed above, the potential safety impacts 
and the need for prompt action on up-to-date information that is not 
public would make delaying the effective date impracticable and 
contrary to the public

[[Page 55502]]

interest. Additionally, for transiting overflights of the Kabul FIR 
(OAKX) on jet routes P500-G500 at altitudes at and above FL300, any 
delay in the effective date of the rule would continue a prohibition on 
U.S. civil aviation operations on these jet routes at altitudes at and 
above FL300 that the FAA has determined is no longer needed for the 
safety of U.S. civil aviation and would thus unnecessarily restrict 
U.S. operators' routing options at those altitudes on those jet routes.
    Accordingly, the FAA finds good cause exists to forgo notice and 
comment and any delay in the effective date for this rule.

III. Background and Discussion of the Final Rule

    On August 30, 2021, the FAA issued NOTAM KICZ A0029/21 to address 
the then-existing unacceptable risks to the safety of U.S. civil 
aviation operations in the Kabul FIR (OAKX) at all altitudes, except 
for transiting overflight operations on jet routes P500-G500. This 
NOTAM prohibited, with certain limited exceptions, U.S. civil aviation 
operations in the Kabul FIR (OAKX) at all altitudes by all: U.S. air 
carriers; U.S. commercial operators; persons exercising the privileges 
of an airman certificate issued by the FAA, except when such persons 
are operating U.S.-registered aircraft for a foreign air carrier; and 
all operators of U.S.-registered civil aircraft, except when the 
operator of such aircraft is a foreign air carrier, due to the risk 
posed by violent extremist and militant activity, lack of adequate risk 
mitigation capabilities, and disruption to air traffic services. The 
NOTAM allowed U.S. civil aviation overflights to transit the Kabul FIR 
(OAKX) on jet routes P500-G500, as such operations are only in the 
Kabul FIR (OAKX) very briefly.
    Following the Taliban takeover of Afghanistan, the International 
Civil Aviation Organization (ICAO) Asia-Pacific Office made contact 
with Afghanistan's civil aviation authority and stood up a contingency 
coordination team (CCT) composed of Afghanistan and neighboring air 
navigation service providers, as well as International Air Transport 
Association (IATA) representation. Afghanistan's civil aviation 
authority and the CCT worked with neighboring air navigation service 
providers to establish a contingency plan for the safe resumption of 
civil overflights in the Kabul FIR (OAKX).
    Subsequently, Afghanistan issued a series of NOTAMs delineating 
overflight procedures and established altitude blocks for specific 
categories of flight operations across various regions. The overflight 
procedures rely upon internationally-recognized traffic information 
broadcasts by aircraft (TIBA) procedures, which pilots use in areas 
around the world where air traffic services are very limited or 
unavailable to maintain safe separation between aircraft. Consequently, 
the FAA determined that U.S. civil aviation operations throughout the 
Kabul FIR (OAKX) could resume at altitudes at and above FL320 due to 
diminished risks to U.S. civil aviation operations at those altitudes. 
On July 25, 2023, the FAA published in the Federal Register a final 
rule, Prohibition Against Certain Flights in the Kabul Flight 
Information Region (FIR) (OAKX), allowing U.S. civil overflights of the 
Kabul FIR (OAKX) to resume at altitudes at and above FL320.\1\ However, 
as described in more detail in the preamble to the July 2023 final 
rule, the FAA continued to assess the situation in the Kabul FIR (OAKX) 
at altitudes below FL320 as being hazardous for U.S. civil aviation and 
prohibited U.S. civil aviation operations at those altitudes.
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    \1\ Prohibition Against Certain Flights in the Kabul Flight 
Information Region (FIR) (OAKX) final rule, 88 FR 47765 (Jul. 25, 
2023). The FAA had prohibited U.S. civil flight operations at all 
altitudes in the Kabul FIR (OAKX) in NOTAM KICZ A0029/21, except for 
transiting overflights on jet routes P500-G500. With the publication 
of the July 2023 final rule, the FAA rescinded NOTAM KICZ A0029/21.
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    Although the FAA did not identify or assess that there existed any 
increased safety-of-flight risks to transiting U.S. civil aviation 
overflights operating on jet routes P500-G500 due to violent extremist 
or militant activity, the FAA prohibited operations on those routes at 
altitudes below FL320 in the July 2023 final rule because the Kabul FIR 
Air Traffic Management Contingency Plan indicates that, as necessary, 
FL300 may be reserved for military operations by NOTAM. Consequently, 
the FAA decided to establish a minimum allowed overflight level of 
FL320 for U.S. civil aviation operations in the entirety of the Kabul 
FIR (OAKX) to help ensure aircraft separation between any military 
operations being conducted in the Kabul FIR (OAKX) at FL300 and U.S. 
civil aviation overflights.
    Since it issued the July 2023 final rule, the FAA has received two 
petitions for exemption from SFAR No. 119, Sec.  91.1619, from U.S. air 
carriers requesting to operate on jet routes P500-G500 at altitudes at 
and above FL300 instead of at altitudes at and above FL320 as required 
by SFAR No. 119, Sec.  91.1619, due to aircraft performance issues 
under certain meteorological conditions.2 3
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    \2\ American Airlines, docket FAA-2023-1985.
    \3\ United Parcel Service, Co., docket FAA-2023-2065.
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    Since the publication of the Kabul FIR Air Traffic Management 
Contingency Plan and continuing since the FAA issued the July 2023 
final rule, Afghanistan has issued a series of NOTAMs permitting 
overflight operations between waypoints FIRUZ and MOTMO on jet routes 
P500-G500 at altitudes between FL300-FL510. The FAA is not aware of any 
safety or security incidents experienced by civil aircraft operating on 
jet routes P500-G500 in the Kabul FIR (OAKX) at altitudes at or above 
FL300 due to military flight operations while FAA NOTAM KICZ A0029/21, 
which permitted U.S. civil aviation operations on that route, was in 
effect or since the July 2023 final rule. In addition, the FAA is not 
aware of any active threats to U.S. civil aviation operations on jet 
routes P500-G500 in the Kabul FIR (OAKX) from violent extremist and 
militant activity and is not aware of any reports of security incidents 
involving violent extremist and militant activity posing safety-of-
flight risks to civil aircraft overflights using these jet routes at 
altitudes at or above FL300 in the Kabul FIR (OAKX), either while FAA 
NOTAM KICZ A0029/21 was in effect or since the issuance of the July 
2023 final rule. The very limited flight time in the Kabul FIR (OAKX) 
minimizes both potential exposure to any military operations in the 
Kabul FIR (OAKX) that might be operating at FL300 and to potential 
opportunistic threats should a violent extremist observe or hear an 
overflying aircraft. Specifically, the flight distance between 
waypoints FIRUZ and MOTMO on jet routes P500-G500 is approximately 12 
nautical miles, which takes approximately 95 seconds at cruising 
speeds.
    Consequently, the FAA has determined that U.S. civil aviation 
overflights of the Kabul FIR (OAKX) at altitudes at and above FL300 on 
jet routes P500-G500 present a low risk. Although violent extremists 
and militants have access to weapons posing risks up to 25,000 feet, 
and there is high terrain in the vicinity of jet routes P500-G500, the 
FAA did not see such weapons used against civil aviation overflights on 
these jet routes during approximately 20 years of U.S. military 
presence in Afghanistan or since the coalition withdrawal in August of 
2021.
    Therefore, consistent with the foregoing, the FAA is amending SFAR 
No. 119, Sec.  91.1619, to permit U.S. civil

[[Page 55503]]

aviation to conduct transiting overflights of the Kabul FIR (OAKX) on 
jet routes P500-G500 at altitudes at and above FL300, subject to the 
approval of, and in accordance with the conditions established by, the 
appropriate authorities of Afghanistan.
    However, this final rule continues to prohibit U.S. civil flight 
operations at altitudes below FL320 throughout the rest of the Kabul 
FIR (OAKX). Violent extremist and militant activities continue to pose 
safety-of-flight risks to U.S. civil aviation at altitudes below FL320 
throughout the rest of Afghanistan. Violent extremists and militants 
are primarily armed with small arms, crew-served weapons, and field 
rockets and may have access to legacy man-portable air defense systems 
(MANPADS). Some MANPADS may be capable of reaching a maximum altitude 
of up to 25,000 feet above ground level; however, in the context of 
Afghanistan, the FAA must also account for the high altitude of some of 
the country's terrain. Allowing U.S. civil aviation operations in the 
Kabul FIR (OAKX) only at altitudes at or above FL320, other than on jet 
routes P500-G500, accounts for risks associated with the capabilities 
of weapons systems potentially available to violent extremist 
organizations and the terrain under other established international air 
routes in the Kabul FIR (OAKX).\4\
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    \4\ As defined in 14 CFR 1.1, ``Flight level means a level of 
constant atmospheric pressure related to a reference datum of 29.92 
inches of mercury.'' Flight level, in this context, is 
differentiated from above-ground-level (AGL), which is altitude 
expressed in feet measured above ground level.
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    Further amendments to SFAR No. 119, Sec.  91.1619, might be 
appropriate if the risk to U.S. civil aviation safety and security 
changes. In this regard, the FAA will continue to monitor the situation 
and evaluate the extent to which persons described in paragraph (a) of 
this rule might be able to operate safely in the Kabul FIR (OAKX).
    The FAA also republishes the details concerning the approval and 
exemption processes in sections V and VI of this preamble, consistent 
with other recently published flight prohibition SFARs to enable 
interested persons to refer to this final rule for comprehensive 
information about requesting relief from the FAA from the provisions of 
SFAR No. 119, Sec.  91.1619.

V. Approval Process Based on a Request From a Department, Agency, or 
Instrumentality of the United States Government

A. Approval Process Based on an Authorization Request From a 
Department, Agency, or Instrumentality of the United States Government

    In some instances, U.S. Government departments, agencies, or 
instrumentalities may need to engage U.S. civil aviation to support 
their activities in the Kabul FIR (OAKX). If a department, agency, or 
instrumentality of the U.S. Government determines that it has a 
critical need to engage any person described in paragraph (a) of SFAR 
No. 119, Sec.  91.1619, including a U.S. air carrier or commercial 
operator, to transport civilian or military passengers or cargo or 
conduct other operations in the Kabul FIR (OAKX), except for transiting 
overflights on jet routes P500-G500 at altitudes at and above FL300, 
that department, agency, or instrumentality may request the FAA to 
approve persons described in paragraph (a) of SFAR No. 119, Sec.  
91.1619, to conduct such operations.
    The requesting U.S. Government department, agency, or 
instrumentality must submit the request for approval to the FAA's 
Associate Administrator for Aviation Safety in a letter signed by an 
appropriate senior official of the requesting department, agency, or 
instrumentality.\5\ The FAA will not accept or consider requests for 
approval from anyone other than the requesting U.S. Government 
department, agency, or instrumentality. In addition, the senior 
official signing the letter requesting FAA approval must be 
sufficiently positioned within the requesting department, agency, or 
instrumentality to demonstrate that the organization's senior 
leadership supports the request for approval and is committed to taking 
all necessary steps to minimize aviation safety and security risks to 
the proposed flights. The senior official must also be in a position 
to: (1) attest to the accuracy of all representations made to the FAA 
in the request for approval, and (2) ensure that any support from the 
requesting U.S. Government department, agency, or instrumentality 
described in the request for approval is in fact brought to bear and is 
maintained over time. Unless justified by exigent circumstances, 
requesting U.S. Government departments, agencies, or instrumentalities 
must submit requests for approval to the FAA no less than 30 calendar 
days before the date on which the requesting department, agency, or 
instrumentality wishes the operator(s) to commence the proposed 
operation(s).
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    \5\ This approval procedure applies to U.S. Government 
departments, agencies, or instrumentalities; it does not apply to 
the public. The FAA describes this procedure in the interest of 
providing transparency with respect to the FAA's process for 
interacting with U.S. Government departments, agencies, or 
instrumentalities that seek to engage U.S. civil aviation to operate 
in the area in which this SFAR would prohibit their operations in 
the absence of specific FAA approval.
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    The requestor must send the request to the Associate Administrator 
for Aviation Safety, Federal Aviation Administration, 800 Independence 
Avenue SW, Washington, DC 20591. Electronic submissions are acceptable, 
and the requesting entity may request that the FAA notify it 
electronically as to whether the FAA grants the request for approval. 
If a requestor wishes to make an electronic submission to the FAA, the 
requestor should contact the Washington Operations Center by telephone 
at (202) 267-3203 or by email at [email protected] for submission instructions. The 
requestor must not submit its letter requesting FAA approval or related 
supporting documentation to the Washington Operations Center. Rather, 
the Washington Operations Center will refer the requestor to an 
appropriate staff member of the Flight Standards Service for further 
assistance.
    A single letter may request approval from the FAA for multiple 
persons described in SFAR No. 119, Sec.  91.1619, or for multiple 
flight operations. To the extent known, the letter must identify the 
person(s) the requester expects the SFAR to cover on whose behalf the 
U.S. Government department, agency, or instrumentality seeks FAA 
approval, and it must describe--
     The proposed operation(s), including the nature of the 
mission being supported;
     The service the person(s) covered by the SFAR will 
provide;
     To the extent known, the specific locations in the Kabul 
FIR (OAKX) where the proposed operation(s) will occur, including, but 
not limited to, the flight path and altitude of the aircraft while it 
is operating in the Kabul FIR (OAKX) and the airports, airfields, or 
landing zones at which the aircraft will take off and land; and
     The method by which the requesting department, agency, or 
instrumentality will provide, or how the operator will otherwise 
obtain, current threat information and an explanation of how the 
operator will integrate this information into all phases of the 
proposed operations (i.e., the pre-mission planning and briefing, in-
flight, and post-flight phases).
    The request for approval must also include a list of operators with 
whom

[[Page 55504]]

the U.S. Government department, agency, or instrumentality requesting 
FAA approval has a current contract(s), grant(s), or cooperative 
agreement(s) (or its prime contractor has a subcontract(s)) for 
specific flight operations in the Kabul FIR (OAKX), except for 
operations in the Kabul FIR (OAKX) limited to transiting overflights on 
jet routes P500-G500 at altitudes at and above FL300. The requestor may 
identify additional operators to the FAA at any time after the FAA 
issues its approval. Neither the operators listed in the original 
request, nor any operators the requestor subsequently seeks to add to 
the approval, may commence operations under the approval until the FAA 
issues them an Operations Specification (OpSpec) or Letter of 
Authorization (LOA), as appropriate, for operations in the Kabul FIR 
(OAKX) at altitudes below FL320 and/or at altitudes below FL300 on jet 
routes P500-G500, as applicable. The approval conditions discussed 
below apply to all operators. Requestors should contact the Washington 
Operations Center by telephone at (202) 267-3203 or by email at [email protected] for instructions on how to submit 
the names of additional operators the requestor wishes to add to an 
existing approval to the FAA. The requestor must not submit the names 
of additional operators it wishes to add to an existing approval to the 
Washington Operations Center. Rather, the Washington Operations Center 
will refer the requestor to an appropriate staff member of the Flight 
Standards Service for further assistance.
    If an approval request includes classified information or 
controlled unclassified information not authorized for public release, 
requestors may contact the Washington Operations Center for 
instructions on submitting it to the FAA. The Washington Operations 
Center's contact information appears in the FOR FURTHER INFORMATION 
CONTACT section of this final rule.
    FAA approval of an operation under SFAR No. 119, Sec.  91.1619, 
does not relieve persons subject to this SFAR of the responsibility to 
comply with all other applicable FAA rules and regulations. Operators 
of civil aircraft must comply with the conditions of their 
certificates, OpSpecs, and LOAs, as applicable. Operators must also 
comply with all rules and regulations of other U.S. Government 
departments, agencies, or instrumentalities that may apply to the 
proposed operation(s), including, but not limited to, regulations 
issued by the Transportation Security Administration.

B. Approval Conditions

    If the FAA approves the request, the FAA's Aviation Safety 
organization will send an approval letter to the requesting U.S. 
Government department, agency, or instrumentality informing it that the 
FAA's approval is subject to all of the following conditions:
    (1) The approval will stipulate those procedures and conditions 
that limit, to the greatest degree possible, the risk to the operator 
while still allowing the operator to achieve its operational 
objectives.
    (2) Before any approval takes effect, the operator must submit to 
the FAA:
    (a) A written release of the U.S. Government from all damages, 
claims, and liabilities, including without limitation legal fees and 
expenses, relating to any event arising out of or related to the 
approved operations in the Kabul FIR (OAKX); and
    (b) The operator's written agreement to indemnify the U.S. 
Government with respect to any and all third-party damages, claims, and 
liabilities, including without limitation legal fees and expenses, 
relating to any event arising out of or related to the approved 
operations in the Kabul FIR (OAKX).
    (3) Other conditions the FAA may specify, including those the FAA 
might impose in OpSpecs or LOAs, as applicable.
    The release and agreement to indemnify do not preclude an operator 
from raising a claim under an applicable non-premium war risk insurance 
policy the FAA issues under chapter 443 of title 49, U.S. Code.
    If the FAA approves the proposed operation(s), the FAA will issue 
an OpSpec or LOA, as applicable, to the operator(s) identified in the 
original request and any operators the requestor subsequently adds to 
the approval, authorizing them to conduct the approved operation(s). In 
addition, as stated in paragraph (3) of this section V.B., the FAA 
notes that it may include additional conditions beyond those contained 
in the approval letter in any OpSpec or LOA associated with a 
particular operator operating under this approval, as necessary in the 
interests of aviation safety. U.S. Government departments, agencies, 
and instrumentalities requesting FAA approval on behalf of entities 
with which they have a contract or subcontract, grant, or cooperative 
agreement should request a copy of the relevant OpSpec or LOA directly 
from the entity with which they have any of the foregoing types of 
arrangements, if desired.

VI. Information Regarding Petitions for Exemption

    Any operations not conducted under an approval the FAA issues 
through the approval process set forth previously may only occur in 
accordance with an exemption from SFAR No. 119, Sec.  91.1619. A 
petition for exemption must comply with 14 CFR part 11. The FAA will 
consider whether exceptional circumstances exist beyond those described 
in the approval process in the previous section. To determine whether a 
petition for exemption from the prohibition this SFAR establishes 
fulfills the standards described in 14 CFR 11.81, the FAA consistently 
finds necessary the following information:
     The proposed operation(s), including the nature of the 
operation;
     The service the person(s) covered by the SFAR will 
provide;
     The specific locations in the Kabul FIR (OAKX) where the 
proposed operation(s) will occur, including, but not limited to, the 
flight path and altitude of the aircraft while it is operating in the 
Kabul FIR (OAKX) and the airports, airfields, or landing zones at which 
the aircraft will take off and land;
     The method by which the operator will obtain current 
threat information and an explanation of how the operator will 
integrate this information into all phases of its proposed operations 
(i.e., the pre-mission planning and briefing, in-flight, and post-
flight phases); and
     The plans and procedures the operator will use to minimize 
the risks identified in this preamble to the proposed operations, to 
support the relief sought, and demonstrate that granting such relief 
would not adversely affect safety or would provide a level of safety at 
least equal to that provided by this SFAR. The FAA has found 
comprehensive, organized plans and procedures of this nature to be 
helpful in facilitating the agency's safety evaluation of petitions for 
exemption from flight prohibition SFARs.
    The FAA includes, as a condition of each such exemption it issues, 
a release and agreement to indemnify, as described previously.
    The FAA recognizes that, with the support of the U.S. Government, 
the governments of other countries could plan operations that may be 
affected by SFAR No. 119, Sec.  91.1619. While the FAA will not permit 
these operations through the approval process, the FAA will consider 
exemption requests for such operations on an expedited basis and in 
accordance with the order of preference set forth in paragraph (c) of 
SFAR No. 119, Sec.  91.1619.

[[Page 55505]]

    If a petition for exemption includes information that is sensitive 
for security reasons or proprietary information, requestors may contact 
the Washington Operations Center for instructions on submitting it to 
the FAA. The Washington Operations Center's contact information is 
listed in the FOR FURTHER INFORMATION CONTACT section of this final 
rule. Requestors must not submit their petitions for exemption or 
related supporting documentation to the Washington Operations Center. 
Rather, the Washington Operations Center will refer the requestor to 
the appropriate staff member of the Air Transportation Division, Flight 
Standards Service, or the Office of Rulemaking for further assistance.

VII. Severability

    Congress authorized the FAA by statute to promote safe flight of 
civil aircraft in air commerce by prescribing, among other things, 
regulations and minimum standards for practices, methods, and 
procedures the Administrator finds necessary for safety in air commerce 
and national security. 49 U.S.C. 44701. Consistent with that mandate, 
the FAA is prohibiting certain persons from conducting flight 
operations in the Kabul FIR (OAKX) below certain altitudes due to the 
continuing hazards to the safety of U.S. civil flight operations at 
those altitudes. The purpose of this rule is to operate holistically in 
addressing a range of hazards and needs in the Kabul FIR (OAKX). 
However, the FAA recognizes that certain provisions focus on unique 
factors. Therefore, the FAA finds that the various provisions of this 
final rule are severable and able to operate functionally if severed 
from each other. In the event a court were to invalidate one or more of 
this final rule's unique provisions, the remaining provisions should 
stand, thus allowing the FAA to continue to fulfill its Congressionally 
authorized role of promoting safe flight of civil aircraft in air 
commerce.

VIII. Regulatory Notices and Analyses

    Federal agencies consider impacts of regulatory actions under a 
variety of Executive orders and other requirements. First, Executive 
Orders 12866 and 13563, as amended by Executive Order 14094 
(``Modernizing Regulatory Review''), direct that each Federal agency 
shall propose or adopt a regulation only upon a reasoned determination 
that the benefits of the intended regulation justify its costs. Second, 
the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 
5 U.S.C. 603 et seq., requires agencies to analyze the economic impact 
of regulatory changes on small entities. Third, the Trade Agreements 
Act of 1979 (Pub. L. 96-39), as codified in 19 U.S.C. chapter 13, 
prohibits agencies from setting standards that create unnecessary 
obstacles to the foreign commerce of the United States. In developing 
U.S. standards, the Trade Agreements Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4), as codified in 2 U.S.C. chapter 25, requires agencies 
to prepare a written assessment of the costs, benefits, and other 
effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local, or Tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this final rule.
    In conducting these analyses, the FAA has determined this final 
rule has benefits that justify its costs. This rule is a significant 
regulatory action, as defined in section 3(f)(4) of Executive Order 
12866 as amended by Executive Order 14094. As 5 U.S.C. 553 does not 
require notice and comment for this final rule, 5 U.S.C. 603 and 604 do 
not require regulatory flexibility analyses regarding impacts on small 
entities. This rule will not create unnecessary obstacles to the 
foreign commerce of the United States. This rule will not impose an 
unfunded mandate on State, local, or Tribal governments, or on the 
private sector, by exceeding the threshold identified previously.

A. Regulatory Evaluation

    This rule continues to prohibit U.S. civil flights in the Kabul FIR 
(OAKX) at altitudes below FL320, except for transiting overflights on 
jet routes P500-G500, due to the significant hazards to U.S. civil 
aviation described in this preamble. The alternative flight routes 
result in some additional fuel and operations costs to the affected 
operators, as well as some costs attributed to passenger time. However, 
this amendment of the SFAR provides relief to U.S. civil operators and 
airmen wishing to conduct transiting overflight operations on jet 
routes P500-G500 at altitudes at and above FL300, instead of requiring 
them to operate at altitudes at and above FL320, as the SFAR previously 
did.
    For the reasons described in the Background and Discussion of the 
Final Rule section of this preamble, the FAA has determined that U.S. 
civil aviation overflights of the Kabul FIR (OAKX) at altitudes at and 
above FL300 on jet routes P500-G500 present a low risk and that U.S. 
operators and airmen may conduct such flights. However, as described in 
more detail in the Background and Discussion of the Final Rule section 
of this preamble, the FAA has also determined that U.S. civil aviation 
operations in the remainder of the Kabul FIR (OAKX) at altitudes below 
FL320 continue to pose unacceptable risks to the safety of U.S. civil 
aviation due to the risks to such operations posed by violent extremist 
and militant activity and the lack of adequate risk mitigation 
capabilities to counter such activity. The rule allows for a lower 
minimum flight level of FL300 on jet routes P500-G500, providing relief 
and reducing the cost for overflights transiting P500-G500 while 
continuing to prohibit unsafe flights in the remainder of the Kabul FIR 
(OAKX) at altitudes below FL320.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an 
agency to prepare an initial regulatory flexibility analysis describing 
impacts on small entities whenever 5 U.S.C. 553 or any other law 
requires an agency to publish a general notice of proposed rulemaking 
for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to 
prepare a final regulatory flexibility analysis when an agency issues a 
final rule under 5 U.S.C. 553 after that section or any other law 
requires publication of a general notice of proposed rulemaking. The 
FAA concludes good cause exists to forgo notice and comment and to not 
delay the effective date for this rule. As 5 U.S.C. 553 does not 
require notice and comment in this situation, 5 U.S.C. 603 and 604 
similarly do not require regulatory flexibility analyses.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to this Act, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where

[[Page 55506]]

appropriate, that they be the basis for U.S. standards.
    The FAA has assessed the potential effect of this final rule and 
determined that its purpose is to protect the safety of U.S. civil 
aviation from risks to their operations in the Kabul FIR (OAKX), a 
location outside the U.S. Therefore, the rule complies with the Trade 
Agreements Act of 1979.

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and Tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $183 million in lieu of $100 
million.
    This final rule does not contain such a mandate. Therefore, the 
requirements of title II of the Act do not apply.

E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
the FAA to consider the impact of paperwork and other information 
collection burdens it imposes on the public. The FAA has determined no 
new requirement for information collection is associated with this 
final rule.

F. International Compatibility and Cooperation

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, the FAA's policy is to conform to 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
determined no ICAO Standards and Recommended Practices correspond to 
this regulation. The FAA finds this action is fully consistent with the 
obligations under 49 U.S.C. 40105(b)(1)(A) to ensure the FAA exercises 
its duties consistently with the obligations of the United States under 
international agreements.
    While the FAA's flight prohibition does not apply to foreign air 
carriers, DOT codeshare authorizations prohibit foreign air carriers 
from carrying a U.S. codeshare partner's code on a flight segment that 
operates in airspace for which the FAA has issued a flight prohibition 
for U.S. civil aviation. In addition, foreign air carriers and other 
foreign operators may choose to avoid, or be advised or directed by 
their civil aviation authorities to avoid, airspace for which the FAA 
has issued a flight prohibition for U.S. civil aviation.

G. Environmental Analysis

    The FAA has analyzed this action under Executive Order 12114, 
Environmental Effects Abroad of Major Federal Actions, and DOT Order 
5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be 
informed of environmental considerations and take those considerations 
into account when making decisions on major Federal actions that could 
have environmental impacts anywhere beyond the borders of the United 
States. The FAA has determined this action is exempt pursuant to 
section 2-5(a)(i) of Executive Order 12114 because it does not have the 
potential for a significant effect on the environment outside the 
United States.
    In accordance with FAA Order 1050.1F, Environmental Impacts: 
Policies and Procedures, paragraph 8-6(c), the FAA has prepared a 
memorandum for the record stating the reason(s) for this determination 
and has placed it in the docket for this rulemaking.

IX. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of 
Executive Order 13132. The agency has determined this action will not 
have a substantial direct effect on the States, or the relationship 
between the Federal Government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, this rule will not have federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

    The FAA analyzed this rule under Executive Order 13211. The agency 
has determined it is not a ``significant energy action'' under the 
Executive order and will not be likely to have a significant adverse 
effect on the supply, distribution, or use of energy.

C. Executive Order 13609, Promoting International Regulatory 
Cooperation

    Executive Order 13609 promotes international regulatory cooperation 
to meet shared challenges involving health, safety, labor, security, 
environmental, and other issues and to reduce, eliminate, or prevent 
unnecessary differences in regulatory requirements. The FAA has 
analyzed this action under the policies and agency responsibilities of 
Executive Order 13609 and has determined that this action will have no 
effect on international regulatory cooperation.

X. Additional Information

A. Electronic Access

    Except for classified and controlled unclassified material not 
authorized for public release, all documents the FAA considered in 
developing this rule, including economic analyses and technical 
reports, may be accessed from the internet through the docket for this 
rulemaking.
    Those documents may be viewed online at https://www.regulations.gov 
using the docket number listed above. A copy of this rule will be 
placed in the docket. Electronic retrieval help and guidelines are 
available on the website. It is available 24 hours each day, 365 days 
each year. An electronic copy of this document may also be downloaded 
from the Office of the Federal Register's website at https://www.federalregister.gov and the Government Publishing Office's website 
at https://www.govinfo.gov. A copy may also be found at the FAA's 
Regulations and Policies website at https://www.faa.gov/regulations_policies.
    Copies may also be obtained by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.

B. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601) 
requires FAA to comply with small entity requests for information or 
advice about compliance with statutes and regulations within its 
jurisdiction. A small entity with questions regarding this document may 
contact its local FAA official or the persons listed under the FOR 
FURTHER INFORMATION CONTACT heading at the beginning of the preamble. 
To find out more about SBREFA on the internet, visit https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects in 14 CFR Part 91

    Afghanistan, Air traffic control, Aircraft, Airmen, Airports, 
Aviation safety, Freight.

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends chapter I of title 14, Code of Federal 
Regulations, as follows:

[[Page 55507]]

PART 91--GENERAL OPERATING AND FLIGHT RULES

0
1. The authority citation for part 91 continues to read as follows:

    Authority: 49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40113, 
40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 
44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 
47508, 47528-47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 
44703 note); articles 12 and 29 of the Convention on International 
Civil Aviation (61 Stat. 1180), (126 Stat. 11).


0
2. Amend Sec.  91.1619 by revising paragraph (c) to read as follows:


Sec.  91.1619  Special Federal Aviation Regulation No. 119--Prohibition 
Against Certain Flights in the Kabul Flight Information Region (FIR) 
(OAKX).

* * * * *
    (c) Permitted operations. This section does not prohibit persons 
described in paragraph (a) of this section from conducting flight 
operations in the Kabul Flight Information Region (FIR) (OAKX) under 
the following circumstances:
    (1) Permitted operations that do not require an approval or 
exemption from the FAA. (i) Overflights of the Kabul Flight Information 
Region (FIR) (OAKX) may be conducted at altitudes at and above Flight 
Level (FL) 320, subject to the approval of, and in accordance with the 
conditions established by, the appropriate authorities of Afghanistan.
    (ii) Transiting overflights of the Kabul Flight Information Region 
(FIR) (OAKX) may be conducted on jet routes P500-G500 at altitudes at 
and above FL300, subject to the approval of, and in accordance with the 
conditions established by, the appropriate authorities of Afghanistan.
    (2) Operations permitted under an approval or exemption issued by 
the FAA. Flight operations may be conducted in the Kabul Flight 
Information Region (FIR) (OAKX) at altitudes below FL320, provided that 
such flight operations occur under a contract, grant, or cooperative 
agreement with a department, agency, or instrumentality of the U.S. 
Government (or under a subcontract between the prime contractor of the 
U.S. Government department, agency, or instrumentality and the person 
described in paragraph (a) of this section) with the approval of the 
FAA or under an exemption issued by the FAA. The FAA will consider 
requests for approval or exemption in a timely manner, with the order 
of preference being: first, for those operations in support of U.S. 
Government-sponsored activities; second, for those operations in 
support of government-sponsored activities of a foreign country with 
the support of a U.S. Government department, agency, or 
instrumentality; and third, for all other operations.
* * * * *

    Issued in Washington, DC, under the authority of 49 U.S.C. 
106(f) and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5).
Michael Gordon Whitaker,
Administrator.
[FR Doc. 2024-14708 Filed 7-3-24; 8:45 am]
BILLING CODE 4910-13-P